Citation Nr: 1336157 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 04-31 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for erectile dysfunction. 3. Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1963 to July 1984, including service in the Vietnam War. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in September 2003 and August 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2008, the Board remanded the matter of entitlement to service connection for sleep apnea in order to afford the Veteran an examination and obtain a medical opinion. The Board also deferred a decision on the issues of entitlement to service connection for vertigo and erectile dysfunction. In April 2009, the Board denied the issues of entitlement to service connection for sleep apnea and vertigo and remanded the issue of erectile dysfunction for additional development. Subsequently, in September 2010, the Board denied entitlement to service connection for erectile dysfunction. The Veteran filed a timely appeal to the Court with respect to all of these issues. In an April 2011 Memorandum Decision, the Court set aside the portion of the April 2009 Board decision that denied service connection for sleep apnea and vertigo and remanded these issues for further proceedings consistent with its decision. With respect to the issue of erectile dysfunction, a joint motion for remand (JMR) was granted the JMR in July 2011, which caused the case to be returned to the Board. These claims then came again before the Board in April 2012 and January 2013, when they were remanded for further development to include proper notice on the claim for sleep apnea, initial review by the RO of recently submitted evidence, and additional VA examinations and opinions. While adequate opinions were not obtained, the Board elected to remedy this oversight by procuring VHA expert medical opinions. Therefore, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). v. West, 11 Vet. App. 268 (1998). In July 2013, the Board sought advisory opinions from the Veterans Health Administration (VHA) on the questions of whether the Veteran's sleep apnea was first manifested in service, whether his erectile dysfunction was caused or aggravated by his military service, by his service-connected vascular disease, or by any medication prescribed for his vascular disease, and whether his complaints of vertigo constituted a separate disability for which service connection should be granted. After these opinions were received, the Veteran's representative submitted additional arguments with regard to all issues in October 2013. The VHA opinion with respect to the claim for vertigo raises the possibility of entitlement to service connection for dolichoectasia, to include as secondary to coronary artery disease. This issue has not been addressed by the RO and the Board therefore does not have appellate jurisdiction over it. It is referred to the RO for appropriate action. FINDINGS OF FACT 1. Sleep apnea had its onset in service. 2. Erectile dysfunction is not due to service or to any service-connected disability. 3. Vertigo is not a distinct or separate diagnosis or disability, nor is it a symptom of the Veteran's current coronary artery disease. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for an award of service connection for erectile dysfunction have not been met. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 3. The criteria for an award of service connection for vertigo as a separate disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in October 2002, January 2005, May 2005, April 2006, and April 2012 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The April 2006 and April 2012 letters also explained what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in the April 2006 and April 2012 communications, and the claim was thereafter readjudicated in October 2012 and February 2013. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Thus, no additional development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In compliance with the Board's previous remands in April 2012 and January 2013, the Veteran was provided with proper VCAA notice and with additional VA examinations and opinions. While adequate opinions were not obtained, the Board elected to remedy this oversight by procuring VHA expert medical opinions. The VHA opinions obtained were adequate and ultimately contained all information needed to rate the disability. Indeed, the examiners reviewed the objective evidence of record and offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, these opinions are is adequate for VA purposes. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, as well as the arguments offered on his behalf before the Court. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Sleep Apnea The Veteran seeks service connection for sleep apnea. Specifically, he has asserted that, although the condition was first diagnosed following his separation from service, its symptoms were present in service and it actually had its onset during his period of active duty. The Veteran's service treatment records show that he was seen at various times for sore throat, difficulty sleeping, and fatigue. In addition, he has submitted written statements from his wife and fellow service members indicating that he snored in service. The Veteran also submitted two private opinions, in December 2011 and February 2012, which indicated that his currently diagnosed sleep apnea was related to his service-connected vascular disease, but did not provide any rationale or basis for these opinions. The Veteran was afforded VA examinations in relation to the matter of his sleep apnea, but none of the opinions received was considered adequate. Therefore, as noted above, the Board requested a VHA expert opinion on the issue. The opinion received in September 2013 reviewed the Veteran's medical history and symptoms and stated that it was at least as likely as not that the Veteran's sleep apnea had its onset in service, although it was not diagnosed at the time. In so finding, the VHA expert noted that sore throat symptoms could be caused by snoring and was a common symptoms in those with sleep apnea. It was also not unusual for someone with apnea to complain of fatigue and sleeping difficulty. Although such symptoms alone do not necessarily indicate a diagnosis of sleep apnea, the fact that the reports of the Veteran's wife and fellow service members described snoring with cessation of breathing, the VHA expert found that this greatly increased the likelihood that sleep apnea was present in service. The September 2013 VHA expert reviewed the record and provided a reasoned opinion based on such information. His response is deemed highly probative. Accordingly, service connection for this disability is granted for sleep apnea. Erectile Dysfunction The Veteran seeks service connection for his erectile dysfunction and asserts that it was caused or aggravated by his service or, alternatively, by his service-connected coronary artery disease. The Veteran's service treatment records contain no discussion of erectile dysfunction or similar complaints. Rather, the record shows that the Veteran first experienced this disability in 2001, after he underwent radical prostatectomy. A VA examination in June 2009 yielded an opinion that the Veteran's erectile dysfunction was the result of his prostate cancer surgery and was not related to service. However, the matter was remanded by the Court based on an agreement of the parties that the examination was insufficient due to failure to provide a reasoned medical explanation for the conclusion reached. The Veteran supplied statements from his treating physicians which suggested his erectile dysfunction was possibly linked to his service-connected vascular disease. However, the opinion submitted in September 2011 did not include an explanation of the rationale used to support this conclusion. As noted above, in August 2013 the Board obtained an expert VHA medical opinion on the issue. The medical expert, a surgeon and urologist, based his opinion on a review of the Veteran's complete claims file and medical treatment records. The expert noted that, while there are many potential causes for erectile dysfunction, the medical record reflects that the Veteran first experienced the problem after his surgery for prostate cancer. Erectile dysfunction was noted as a very well-known complication of such surgery. The Veteran did not demonstrate any of the risk factors for vascular erectile dysfunction such as diabetes mellitus or a history of smoking. Coronary artery disease, while often attributable to the same underlying causes as erectile dysfunction, does not itself cause erectile dysfunction. Medication-induced erectile dysfunction was also ruled out. It was the expert's opinion that the Veteran's erectile dysfunction was not caused or aggravated by his service-connected coronary artery disease or by any medication prescribed for it. The expert concluded that "radical prostatectomy outweighs all other risk factors by far, in this patient." While the Veteran's treating physician did supply a statement regarding a link between vascular disease and erectile dysfunction, there was no rationale supplied for this statement. As such, it is outweighed by the clear and well-reasoned opinion to the contrary offered by the VHA expert. As the preponderance of the evidence is therefore against the claim of service connection, the benefit-of-the-doubt standard of proof does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b). Vertigo The Veteran filed a claim of service connection for vertigo. The claim was originally denied by the Board in the decision of April 2009 based on the fact that dizziness is a symptom of coronary artery disease and vertigo was therefore already considered in the 100 percent disability rating assigned for that disability. The Court vacated that finding and remanded the matter to the Board, noting that vertigo and dizziness are distinct concepts and therefore vertigo may be subject to service connection as a separate disability. A review of the Veteran's service treatment records shows a single incidence of vertigo in February 1969. There is no evidence that the Veteran had a problem with chronic vertigo, or any other chronic disability manifested by dizziness in service. At separation from service in 1984, he denied a history of dizziness or fainting. While the Veteran had claimed vertigo at least in part as due to exposure to herbicides such as Agent Orange, the Board found in the April 2009 decision that he was not entitled to the presumption of exposure to herbicides because there was no evidence that he had set foot on land in Vietnam. That portion of the Board's decision was not disturbed by the Court's decision and remand and is therefore no longer at issue before the Board. The issues of service connection as related to the episode in service or as a secondary effect of his service-connected coronary heart disease must still be considered. At a VA examination in August 2003 for ear disease the Veteran described vertigo, nausea, and vomiting of approximately one to three years duration. The VA examiner noted that the duration of the Veteran's vertigo -- fifteen to twenty minutes -- was longer than what would be expected for benign positional vertigo and that there were no objective findings to correlate his vertigo with a diagnosis of Meniere's disease because there were no ear abnormalities noted other than age-related hearing loss. The August 2003 VA examiner who conducted the Veteran's heart examination concluded that the Veteran's weakness and vertigo were due to poor arterial perfusion due to heart disease and were precipitated by strenuous activity. It was this opinion which formed the basis for the Board's April 209 decision. However, the Court noted that vertigo and dizziness were two distinct medical concepts and there was no indication in the record that dizziness was among the symptoms the Veteran experienced after any stress test. As noted above, the Board sought and obtained an opinion from a VHA medical expert, who thoroughly reviewed the claims file and all of the Veteran's medical records. The expert stated clearly that "[v]ertigo is a symptom, not a diagnosis" and explained that both lay persons and medical providers often use the terms vertigo and dizziness interchangeably, although they are not necessarily the same thing. "Vertigo is a symptom of illusory movement, presyncope is the sensation that one is about to faint, disequilibrium is a sense of imbalance, and nonspecific dizziness is a term used when the symptoms are poorly defined by the patient." While the expert noted that it was difficult to determine from the medical record which symptom the Veteran was experiencing at specific times, he concluded that the evidence linking vertigo to coronary artery disease was insufficient. The expert noted that the references made specifically to vertigo did not indicate any particular precipitating, aggravating, or alleviating factors, to include exertion. However, the VHA expert found it significant that an MRI in 2003 showed dilation and enlargement (dolichoectasia) of the basilar artery near the medulla, a finding often associated with transient symptoms including vertigo. Such dilation is the result of risk factors including hypertension and previous history of a heart attack. The expert ruled out a diagnosis of Meniere's disease, noting that such involves hearing loss at the time of the sensation of vertigo, which the Veteran had specifically denied on examination; the Veteran's hearing loss instead was constant and due to nerve damage. The expert found additional evidence for his conclusions linking the cause of the Veteran's vertigo to dolichoectasia of the basilar artery in the elimination of the other possible causes of vertigo. The expert offered the opinion that the Veteran's symptoms of vertigo in service were not related to his current vertigo, in that the symptoms in service were explained as a reaction to a specific medication and therefore not related to the later development of dolichoectasia. Based on the expert medical opinion, the Board concludes that vertigo is not a distinct diagnosis of a specific disability but instead is merely a symptom of a disability. The Board finds that this medical opinion addresses the concerns raised by the Court in the JMR and has provided a satisfactory resolution to them. As such, service connection for vertigo as a distinct and separate diagnosis is not warranted. The Board also finds that the Veteran's current symptom of vertigo is not related to the symptoms shown in service, based on the VHA expert's opinion and the explanation provided therein. The Board has also considered the question of vertigo as a symptom of the Veteran's current service-connected disability of coronary artery disease. Based on the lack of association with exertion on medical testing and the explanation of the VHA expert, the Board concludes that the Veteran's vertigo is not related to his coronary artery disease, but to the diagnosis of dolichoectasia as discussed in the expert opinion. As the issue of entitlement to dolichoectasia has not been raised before the RO, the Board has no jurisdiction to consider it. Thus, the matter is referred to the RO for appropriate action as set forth above. ORDER Entitlement to service connection for sleep apnea is granted, subject to the laws and provisions governing the award of monetary benefits. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for vertigo as a separate disability is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs